JUDGMENT : M. Hidayatullah, J. 1. The Appellant Rawail Chand has been convicted Under Section 302 and sentenced to rigorous imprisonment for life. He was tried with one Gulabchand who was convicted Under Section 323 and whose sentence of imprisonment already undergone was treated as the appropriate sentence. He has, therefore, not appealed. Formerly, these two were prosecuted Under Section 302 read with Section 34 of the IPC but in view of the conviction of Gulabchand Under Section 323, the conviction of the present Appellant has been made Under Section 302 simpliciter. The learned High Court, however, has by an oversight continued to mention Section 34 which in the circumstances and in the light of the judgment is clearly a typing mistake. 2. When special leave was granted in this appeal, it was limited to the question whether the offence disclosed was Under Section 302 or Under Section 304, that is, culpable homicide not amounting to murder. The facts of the case need not be gone into elaborately. Rawail Chand used to visit his co-accused Gulabchand who was a tenant in the house of one Ramdeo. The deceased Kunwarbhan was also then living in that house. It appears that Gulabchand and Rawail Chand used to sit at the house and chat together using filthy language, which offended the other residents of the house, including the ladies. A protest was made to these two youngmen not to indulge in filthy talk but it seems that they did not take it well. On the day of the occurrence a wordy altercation appears to have taken place between Kunwarbhan on the one hand and Rawail Chand and Gulabchand on the other. The prosecution story is that Gulabchand thereupon grappled with Kunwarbhan while Rawail Chand took out a knife and 'lit him on his back. Kunwarbhan died as a result of the blow which on the autopsy was found to have partially cut the 10th rib and wholly the 11th rib and penetrated in the abdomen and caused a cut in the spleen. There was another injury on Kunwarbhan on the thigh which might have been a glancing blow from the first as was suggested before us. In any event, we are not taking that into account. Rawail Chand and Gulabchand were sentenced to death but, on appeal, the High Court altered the sentence of Rawail Chand to imprisonment for life. There was another injury on Kunwarbhan on the thigh which might have been a glancing blow from the first as was suggested before us. In any event, we are not taking that into account. Rawail Chand and Gulabchand were sentenced to death but, on appeal, the High Court altered the sentence of Rawail Chand to imprisonment for life. Gulabchand was convicted Under Section 323 and the period of imprisonment undergone by him was imposed as his sentence. 3. In dealing with Rawail Chand's case the High Court observed, "From the facts it, however, appears that Rawailchand or Gulabchand had not preplanned to kill Kunwarbhan. At the spur of moment on account of heat which seems to have been created on the exchange of hot words, the injury was caused and in these circumstances, we think that a sentence of imprisonment for life would meet the ends of justice." This observation was brought to our notice and Mr. Nur-ud-din Ahmad contended that the offence falls within Section 304 because it comes within the 4th Exception to Section 300. That Exception reads as follows: "Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having undue advantage or acted in a cruel or unusual manner." It will be noticed that the Exception is dependent on a number of circumstances. There must be (1) no premeditation; (2) there must be a sudden fight in the heat of passion upon a sudden quarrel; and (3) the offender must act without taking undue advantage and not in a cruel and unusual manner. That there was a sudden quarrel may be accepted but it does not appear from the evidence that there was a sudden fight. Nor can it be said that the offender did not take undue advantage or act in a cruel or unusual manner. In support of his contention that this was not so, Mr. Nur-ud-din showed us the evidence that Rawail Chand had an injury on his forehead which, he said, he had received from a stick blow. The High Court and the Court below, however, did not accept this version. There is evidence of Khubchand (P.W. 8), who said that the injury was caused when Rawail Chand was running through a lane. Nur-ud-din showed us the evidence that Rawail Chand had an injury on his forehead which, he said, he had received from a stick blow. The High Court and the Court below, however, did not accept this version. There is evidence of Khubchand (P.W. 8), who said that the injury was caused when Rawail Chand was running through a lane. In this view, we have not taken into consideration the injury which was on Rawail Chand's person. 4. It, therefore, remains to consider whether the requirements of Exception 4 were fulfilled in this case. As we have said it may be admitted that there was a sudden quarrel but there was no fight, because Kunwarbhan never offered any fight. In fact, he was held by Gulabchand when the injury was caused and further Rawail Chand certainly took undue advantage in striking a person who was held by Gulabchand and also acted in an unusual and cruel manner by whipping out a knife and hitting the victim in his back. The 4th Exception cannot therefore apply. The conviction of the Appellant Under Section 302 was proper. In the circumstances, the appeal fails and is dismissed.